council to prevent and restrain "drunkenness." To prohibit the sale or giving of intoxicating liquors to an habitual drunkard is one way of "preventing" and "restraining" drunkenness. It is not for the court to say whether it is the best way or not, nor is it material. It is evident, if no liquor is sold or given to such person, to that extent the object of this provision of the charter is accomplished. I think that the ordinance, so far as it prohibits the furnishing of intoxicating liquors to an habitual drunkard, is within the powers granted by the charter, and must be upheld.

2. It is next objected that said ordinance is not properly pleaded. In discussing this objection, it must be remembered that this proceeding was instituted in an inferior court, where rigid technicality would be subversive of the whole purpose of the law in the organization of such courts. Their proceedings are necessarily summary; but the substance of all that is legally requisite must appear. There are two modes at common law of bringing any writing upon the record by pleading,-one was to set it out in hæc verba, and the other was to plead it according to its legal effect, and this rule remains unchanged by any provision of our Code. The pleader evidently sought to avail himself of the latter mode, and while the matter might have been stated with greater fullness and particularity, I am not prepared to hold that it is insufficiently pleaded. The substance

of so much of the ordinance as was material is stated, and from this its legal effect is apparent.

3. It is next claimed that the complaint is insufficient because it fails to allege that the defendant knowingly furnished the spirituous liquor, etc. On this point, so far as appears, the complaint follows the descriptive words of the ordinance, and in indictments founded upon statutes that is ordinarily sufficient. It will hardly be claimed that a strict rule ought to be applied to this pleading.

4. It is next suggested that the validity of the ordinance was not proven, and the evidence offered was insufficient. Neither of these is presented by this record.

The pas

sage of the ordinance by the council was all on that subject which the town need make appear on the trial before the recorder. When its passage was shown, its legality or illegality did not depend on proof, but upon the charter, and what it contained: Whatever evidence was offered does not appear, and, if it did, review is not the proper proceeding to retry a question of fact, unless, possibly, in some exceptional case, which has not as yet been brought before the courts of this state.

5. It is next contended that this ordinance is in conflict with the general statute of the state which makes it unlawful for any person to knowingly sell any spirituous or intoxicating liquors to any intoxicated person, | v.23p.no.15--56

or to any person in the habit of becoming intoxicated. Sess. Acts 1876, p. 8. The course of legislation in this state, and the tendency of judicial opinion, are to leave this question in the hands of municipalities. Charters with enlarged powers have been constantly granted to the cities and towns, to enable them to deal with it in such manner as their particular condition may require. The charter of the town of Prineville is an example of that charter. Counsel for appellant cite Barton v. La Grande, 17 Or. 577, 22 Pac. Rep. 111, as tending to support his objections to the insufficiency of this complaint; but the main question there was the construction of the charter relating to the right of appeal, and in what cases the writ of review was the appropriate remedy. The insufficiency of a complaint in such case was not involved. Such legislation as that under consideration relates to the peace and good order of the town. It is an exercise of the police power of the state, confided to the authorities of the town by the charter, and as long as it is kept within proper limits will be steadily upheld. The judgment of the court below will be affirmed.

BAILEY v. Davis.

(19 Or. 217)

(Supreme Court of Oregon. May 8, 1890.) AGISTMENT-LIEN BY SERVANT-INSTRUCTIONS.

1. When the relation of master and servant exists, the servant can acquire no lien on his master's cattle, for depasturing or feeding them, under section 3684, Hill's Code.

2. An instruction to the jury based on no evidence in the case is abstract, and may be misleading.

(Syllabus by the Court.)

Appeal from circuit court, Umatilla county; JAMES A. FEE, Judge.

This is an action of replevin to recover about 50 head of cows. The complaint is in the usual form. The answer, after denying the material allegations of the complaint, alleges in substance that the defendant was entitled to the possession of the property described in the complaint, and that he had a special property therein, under and by virtue of the following facts, to-wit: That on or about the 28th day of November, 1888, at Umatilla, Or., the defendant, at the request. of one Cripe, who was then and there the owner, and in the lawful possession, of said property, took said cows to care for, attend, feed, and herd, and that defendant so cared for, and bestowed labor and attention in feeding and herding, said cows from the 28th day of November, 1888, until the 9th day of April, 1889, and that said care and attention was reasonably worth $155.20, and that he has a lien on said property for said sum. The other facts appear in the opinion. The defendant had judgment. Plaintiff appeals. J. J. Balleray, for appellant.

STRAHAN, J., (after stating the facts as above.) As near as we can determine from

this record, the defendant sought to retain the possession of the cattle in controversy under section 3684, Hill's Code, which gives to any person who shall depasture or feed any horses, cattle, hogs, sheep, or other livestock, or bestow any labor, care, or attention on the same, at the request of the owner or lawful possessor thereof, a lien for his just and reasonable charges, and authorizes him to retain the possession of such property until such charges be paid.

On the trial the plaintiff gave evidence tending to prove that he was the owner of all of said property, and was entitled to the immediate possession thereof, and that, prior to the commencement of the action, he had demanded the same from the defendant, who had refused to deliver it. The plaintiff's evidence further tended to show that about the month of October, 1888, plaintiff leased the property in controversy to one A. J. Cripe, and that prior to the month of April, 1889, Cripe forfeited said lease by failing and neglecting to pay the rent mentioned in said lease for the use of said cattle, and that about April 1, 1889, Cripe "left between two days;" that the cattle in controversy were known as the "John Ward and John Knight Dairy Cows." The defendant testified, as a witness in his own behalf, in substance: "I know the band of cows mentioned in plaintiff's complaint. I was herding them about the 1st of last April. I know the cattle's brand. It was OK. Those branded O K, Cripe got of Bailey. Two more, known as the Wagenblast Cows,' came from town, here. It was reasonably worth $35 per month to herd the cows. I herded them for about three months at the request of A. J. Cripe. The herding amounted to $155. When the plaintiff demanded them of me, on the 6th of April, 1889, I refused to surrender them, and told him I held them for my labor of herding. I had possession of them at that time. I had the possession of them all the time, and herded them on the Umatilla reservation, and not on Cripe's ranch." On his cross-examination the defendant testified: "The cows belonged to the OK Dairy, on Wild Horse creek. I first went to work there in November, 1888, on the dairy ranch. There were some cows there then, some of the O K cows. The John Knight cows were there. The cows were not all there. A. J. Cripe was running the ranch when I first went there. A. J. Cripe was running the place when I first had anything to do with the cattle. On November 8th, I believe, arrangements between myself and Cripe were made. I hired to work for him at the dairy for $30 per month and board.

I continued to work till about the 7th of February on dairy work, then went to herding. Cripe agreed to pay me $35 per month for herding, and board me. The arrangements for me to herd were made out at the ranch. I think Fred and Jack Bowman and Henry Dobson were present. He was to pay me by the month. I did not herd in a

pasture. I herded on the reservation. I paid nothing for the privilege. I had plenty of grass of my own. I got it by driving on. I had as much right as any other herder. I owned no land, and bought no privilege. Cripe told me to drive on the reservation. From February 7th, I worked around the ranch evenings and mornings. Cripe was living there. I milked some of the cows. I drove them out in the morning and back at night, and helped milk. Sometimes four hands milked, and sometimes three. They were Cripe's hands. *** I swear that Cripe turned over those cattle to me for the purpose of being herded. He said he wanted me to take the cattle of him, and herd them, and bring them in and take them out. They were milked in the barn,-driven in, and tied in the barn. They slept there at nights,-every night. It was in Cripe's barn. Cripe told me that I could hold the cows for my pay; that he couldn't pay me till spring. I told him I would wait till spring." Knight testified that he was interested with Cripe in these cattle; that witness left the ranch in December. "Saw defendant there up to the time that Cripe run away. He first helped on the farm. Helped milk after witness came away. Hauled straw in December and January. Was with Cripe when defendant first came to work. I paid $50 for the privilege of herding these cattle on the reservation from June 1, 1888, to June 1, 1889. He (Cripe) came in on the same privilege, and that is the way the cattle came to be herded on the reservation." There were some other witnesses, but this is the material part of all the evidence.

John

The court gave this instruction, to which an exception was taken: "First. That if the jury find from the evidence that, at the time of the demand of the plaintiff for the possession of the cows in question, and at the time of the commencement of this action, the defendant was in possession of said cows, and that the defendant held said cows, and herded and cared for the same, prior to said time, at the request of the owner or lawful possessor, and that the defendant took and held said cows for such purpose at the request of the owner or lawful possessor, then the defendant is entitled to the possession of said cows, and may retain possession of the same until the just and reasonable charges of such care, attention, and herding are paid."

1. This instruction follows the language of the statute very closely, and in a proper case no objections could be urged against it; but, under the facts before the jury in this case, it was purely abstract, and was necessarily misleading. It assumed, and the jury doubtless understood, that there was some evidence before them upon which the instruction could be based; but there was none whatever. The defendant's relation to Cripe was that of a servant; and the relation of master and servant, and none other, existed between Cripe and the defendant. The de

fendant had no more lien for driving these cows out to the reservation for Cripe, and back in the evening, than he had for helping to milk them upon their return, or for hauling straw; and he had no lien in either case. Nor, while said relation of master and servant continued, could he have any separate or independent possession of said property. Whatever service he performed, or whatever authority he exercised, was for Cripe, and in its performance he represented him. The instruction given by the learned circuit judge

was at variance with this view, and was er

ror.

It is true that the court followed the foregoing instruction by a number of others, by which the jury was informed that no man working about the ranch has any lien on the property of his employer, and has no lien on his employer's cows, though part of his services should consist in herding them; and this: No man employed, for wages, to herd cattle, has any lien on the cattle for reasonable compensation. The court further told the jury: "If you find the defendant was a hired man, working for wages, you must find for the plaintiff." And further: "Where

the relation of master and servant exists, no lien accrues.' 99 These instructions were correct statements of the law, but they do not purge the case of the error already committed by the court in giving the first instruction.

2. Here is an instruction given by the court which is erroneous for the same reasons that No. 1 was an error: "It is for the jury to say whether or not there was an actual transfer of the possession of the property; and, if you find from the evidence that these cattle were turned over to the defendant for the purpose of being herded, and defendant performed said service, and that he had the actual and exclusive possession, then he has a lien thereon, provided that the relation of master and servant did not exist, and that an original and independent contract had been made for such herding; but, if you find these cattle not turned over as above stated, then you must find for the plaintiff." All of this instruction, down to the proviso, necessarily assumes that there was some evidence before the jury which would authorize the jury to find the facts therein recited. I look in vain for such evidence, but fail to find it, and it is for that very reason such instructions are always erroneous. However correct they may be as abstract propositions of law, and as applied to a proper case, they, in effect, tell the jury that there is evidence before them from which such facts may be found; and in that way such instructions may work serious injury to one party or the other. number of other exceptions were taken, and appear in the transcript; but it is believed those already noticed sufficiently indicate the views of this court to answer all the purposes of another trial, should one be found necessary. The judgment appealed from must therefore be reversed, and the cause remanded to the court below for a new trial.

A

(18 Or. 330)

MESSINGER et al. v. WATSON et al. (Supreme Court of Oregon. Jan. 9, 1890.) Appeal from circuit court, Jackson county; L. R. WEBSTER, Judge.

A. S. Hammond, for appellants. Watson, Hume & Watson, for respondents.

PER CURIAM. As this involves no principle of law not already passed upon by the court, but depends for its proper determination wholly upon the facts, it is enough to say that our examination of it leads us to the conclusion that the findings of the court below are sustained by the evidence, and that its decree must be affirmed.

(19 Or. 141)

FERRERA v. PARKE et al. (Supreme Court of Oregon. April 16, 1890.) CONVERSION-NONSUIT-PLEADING.

1. Under section 246, Hill's Code, a judgment of nonsuit on the defendant's motion is improper if the defendant was required to produce evidence to meet the plaintiff's case.

2. A pleading which is defective by reason of the omission of some material allegation may be aided by the pleading of the adverse party. If the omitted allegation be supplied by the adverse pleading, it is the same as if it were inserted in the party's own pleading.

(Syllabus by the Court.)

1. Conversion is based on the idea of an assumption by the defendant of a right of property, or a right of dominion over the thing converted, which casts upon him all the risks of an owner; and, consequently, it is not every wrongful detention of property that amounts to conversion.

2. A demand and refusal will not be sufficient evidence of conversion when it appears that the property demanded was not at the time in the possession or under the control of the defendant on whom the demand was made, but that it had been previously mislaid or was lost.

(Per LORD, J., dissenting.)

Appeal from circuit court, Multnomah county; E. D. SHATTUCK, Judge.

This is an action to recover damages for the conversion of certain chattels. It is alleged in the complaint that on the 15th day of February, 1887, the defendants were partners doing business at the city of Portland, and that on that day the plaintiff was the owner and in the possession of certain personal property, to-wit, "a plan and drawing of a macaroni and faroni paste factory, and of the machinery, utensils, and apparatus to be used in said factory, in the manufacture of macaroni and faroni," made and prepared by the plaintiff, by E. Gravero & Co., in Foce, near Genova, Italy, of the value of $2,500, and that the defendants thereafter converted the same to their own use, to plaintiff's damage in the sum of $2,500; that before the commencement of this action, at divers times, the plaintiff demanded said property of the defendants; and that they refused, and still refuse, to return or deliver the same to the plaintiffs. The complaint further alleges that he had expended $500 in preparations to run and operate said macaroni and faroni paste factory, and that he

from all liability? were all questions presented by the defendants, and they were for the jury, under proper instructions by the court. The learned counsel for the respondent, in support of the practice adopted in the court below, cites Jansen v. Acker, 23 Wend. 481; Rudd v. Davis, 3 Hill, 287, 7 Hill, 529; People v. Cook, 8 N. Y. 67; Lomer v. Meeker, 25 N. Y. 361; Geary v. Simmons, 39 Cal. 224. These authorities certainly do tend very strongly to support the respondent's contention, but they are at variance with what has already been settled in this court. The particular statutes under which these cases were decided, if any, were not brought to our notice; and if there were no statutes governing such practice, but those cases simply announced the general course of procedure in those states, the cases could not be accepted as controling authority in this state. Respondent's counsel has criticised the complaint, and doubtless it would have been more in harmony with the spirit of Code pleading if it had alleged, among other things, the delivery of this property to the defendants, and the object of such delivery, etc., and the defendants' failure to return it; but the defendants have supplied that by an "express aider" in their answer. Bliss, Code Pl. § 437. These allegations are contained in the defendant's answer, with the further matter designed to excuse such failure.

These are questions which should have been tried out before that jury, upon the merits of which we indicate no opinion at this time, but reverse the judgment, and remand the cause for a new trial.

THAYER, C. J., (concurring.) I concur with Judge STRAHAN in his conclusions in this case regarding the rule of nonsuit of a plaintiff under the Code of this state; and as to the sufficiency of the evidence upon the part of the appellant to establish prima facie cause of action against the respondents herein for the conversion of the plans in question. That said plans were delivered to the respondents with the understanding that they should make and furnish to the appellant an estimate of the cost of constructing the machine which the plans represented, was conceded; and the appellant testified that the respondents were to give him an answer regarding the matter within about 10 days, but that he had never been able to obtain any such estimate, or to recover back his plans, although he had called for them, and demanded their return, a great number of times. This of itself was sufficient to prove a conversion of the plans, unless their detention was satisfactorily accounted for; and it cannot reasonably be claimed that the failure of the respondents to return the plans to the appellant was excused by anything which appeared in the testimony adduced by the latter. The appellant himself testified that one of the respondents, Mr. Parke, told him that he saw the plans in San Francisco, and that he had been looking for them to send them back to appellant, but had

missed them, and that they could not be found. He, however, testified in the same connection that, when he placed the plans in the hands of the respondents, he did not know that they had a house in San Francisco; that he never authorized them to send the plans to San Francisco. It also appeared from the testimony of Mr. Arthur, manager of the respondent's business at Portland, when on the stand as a witness for the appellant, that he had a vague recollection that the plans were sent to San Francisco either by himself, Mr. Campbell,-mechanical engineer for the respondents, or were taken there by Mr.. Parke, and, upon his cross-examination by respondents' counsel, he testified that the object in sending the plans to San Francisco was simply to get a bid from the home office on what they could manufacture the machine for; that they were endeavoring to secure a price; that the facilities for manufacturing in San Francisco were much better than in Portland; that he continued with respondents at their Portland house until about July 1, 1888; and that during the time he was there the respondents never undertook to make use of these plans, or to appropriate them.

The main point in the case is whether the appellant, by leaving the plans with the respondents at Portland, under the circumstances, and for the purpose as testified to by him, authorized the respondents to send them to their home office in San Francisco, for the purpose claimed by them. If the respondents were not so authorized, then they were guilty of wrongful conversion of the property, as "any interference subversive of the right of the owner of personal property to enjoy and control it is a conversion." Budd v. Railway Co., 12 Or. 271, 7 Pac. Rep. 99. It was not necessary that the respondents should have made use of the plans for their own benefit, or appropriated them to their own personal advantage, in order to constitute a conversion. The question is, did the respondents exercise dominion over them in exclusion or in defiance of the appellant's right? 4 Amer. & Eng. Cyclop. Law, 108. The gist of the conversion is the usurpation of the owner's right of property, and not the actual damages inflicted. Id. 113, note 3. Nor is it necessary that the act should be willful or intentional to render it a conversion. "If a carrier, by mistake, delivers goods to the wrong person, he is liable in trover." Id. 112, note 3. "Honesty of purpose is not a defense, and can in no measure shield the defendant from liability, except to prevent the giving of punitive damages.' 6 Wait, Act. & Def. 164. "And it makes no difference [in case of bailment] that the depositary did the act for the benefit of the depositor, or that it really inured to his benefit. He has no right to use the property for any purpose other than that for which it was left with him, upon any consideration or for any purpose,-not even for its preservation." Id. 165. Any abuse of possession lawfully acquired, or any breach

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